Competition and Markets Authority v GlaxoSmithKline plc (Paroxetine)
[2018] CAT 4
Ratio Decidendi
Pay-for-delay agreements in the pharmaceutical sector, where an originator company pays generic competitors to stay out of the market, may constitute both a restriction of competition by object and an abuse of dominant position.
Hechos
The CMA found that GSK had entered into agreements with generic manufacturers of the antidepressant paroxetine, making value transfers to the generics in exchange for their agreement to delay independent market entry. The CMA found this constituted both anti-competitive agreements and an abuse of GSK's dominant position.
Resumen de la sentencia
The CAT largely upheld the CMA's findings on the Chapter I infringement, confirming that pay-for-delay agreements could restrict competition by object. The case was referred to the CJEU for a preliminary ruling, which confirmed that such agreements can be restrictions by object where the value transfer can only be explained by the commercial interest of both parties not to compete on the merits.
Citas clave
"Where the only plausible explanation for the payment is the mutual interest of the parties in avoiding competition, there is a restriction of competition by object."
— The Tribunal
Tratamiento posterior
The CJEU ruling (Case C-307/18) confirmed the framework for assessing pay-for-delay agreements across the EU and UK.
The CMA has continued to investigate pharmaceutical pay-for-delay arrangements using this framework.